Constitutional Restraints of Supranational Judicial Activism — a Challenge to European Integration
Constitutional Restraints of Supranational Judicial Activism — a Challenge to European Integration

Summary/Abstract: Today it is a commonplace that the Court of Justice of the European Communities has played an indispensable role in the process of European legal integration. The practice of the European Court, often described as activist, has resulted in at least, two developments: (a) transformation of the original (treaty forged) relationship between national and European law, and (b) remodeling of the vertical separation of powers between the Union and its Member States. These developments seem to be restrained by the reaction of some Member States, acting on both, supranational and national level. Supranational judicial activism developed in the European Union has threatened to jeopardize constitutional values of Member States and strip them off their residual powers. In other words, the European Court of Justice acts as a supranational counter-majoritarian force in respect of national legislatures. On the other hand, national courts, following the traditional reasoning infused with the concept of national sovereignty are reluctant to recognize the supremacy of supranational legal rules when they are at variance with national constitutional law. It is suggested that the issue of legitimacy is of essential importance for the future of the European Union. However, one has to distinguish the sources of legitimacy of judicial and legislative branch. While the latter is derived from the democratic process, the former is derived from procedural and substantive justice. While legislative regulation reflects interests, judicial regulation is an expression of justice. In other words, the two branches of government are to certain extent incommensurable. That explains why the ECJ has retained its legitimacy even in the absence of democratic process. That also explains why the battle for supremacy has to be won not only on the legislative but also on the judicial ground.

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